Although student journalists have traditionally developed skills working for school-sponsored newspapers, magazines and yearbooks, an increasing number have turned to independent or “underground” publications in recent years. This choice can allow students to take advantage of many basic First Amendment freedoms. But it can also create headaches for students who do not understand their legal rights and responsibilities.

WhatIs an Underground Newspaper?

An underground newspaper can be any type of student publicationnot affiliated with a school. Like their predecessors in the 1960s, undergroundpapers can be critical of school officials and policies, use strong languageand include articles on sensitive or controversial issues. They can takethe form of anything from a one-time flier photocopied by an elementaryschool student to a regularly and professionally printed independent collegenewspaper. An increasing number of students are utilizing the World WideWeb to disseminate non-school-sponsored publications. The distinguishingfeature of an underground paper is that it is produced apart from any courseand without any school materials or other official assistance.

The publication’s connection to a school instead comesfrom the fact that students are often its sole producers and audience.Students generally write and produce the entire publication. The pagesoften include hard-hitting commentaries on school-related topics as wellas political and social issues of interest to students, and the publicationis often distributed on school grounds Although student newspapers distributedoff school grounds may be referred to as “underground” publications, thispacket’s primary focus is publications that come onto school grounds. Studentswho produce and distribute their publications away from school generallycannot be controlled or punished by school officials, although many officialsdo not understand this and still attempt to punish.[1]

The term “underground newspaper” as used in this packetalso includes publications other than newspapers. All of the law discussedhere also applies to non-school sponsored magazines (“zines”), fliers and,to some extent, sites on the World Wide Web.

Why Would Students Consider Publishing Underground?

Students choose to go “underground” for many differentreasons. Unfortunately, the decision often comes as a result of a school’sattempt to censor or shut down a school-sponsored student newspaper. Thishas become more common since the U.S. Supreme Court permitted greater censorship of public high school newspapers in its 1988 decision Hazelwood v. Kuhlmeier.[2]

Sometimes a school-sponsored newspaper’s staff itselfpublishes an underground paper in response to pressure from administrators.At an Arkansas high school in 1994, for example, student journalists publishedand distributed a four-page newspaper outside of school after their principalordered the paper’s staff to apologize and submit to prior review in thewake of a story about a student’s fatal shooting.[3] NewJersey high school students also went underground in 1995 after their adviserleft and the school refused to let them operate without one.[4] College journalists in Georgia also considered this option in 1993 when school officials refused to allow two columns in the school newspaper.[5]

At other times, students unaffiliated with the school-sponsoredpaper may want to provide an alternative to an official paper subject tocensorship. This was the case at a California high school in 1990 whenstudents created an underground paper after school officials censored aletter to the editor critical of the school’s principal.[6]

Other students start underground papers because they aredissatisfied with a school-sponsored publication’s content. An exampleof dissatisfaction arose in Illinois in 1996 when four high school studentsdecided to start their own paper after they were offended by the school’spaper reference to some students as “freaks.”[7]

Another reason for going underground is to avoid the constraintof official ties to a school. As two student newspaper staffers at an Illinoisuniversity who started their own paper put it, they simply wanted the freedomto “try something different.”[8] Non-school sponsored publications generally provide an opportunity for students to be more pointed and use slightly more risque humor and language. On a school-sponsored newspaper,they may, for example, fear indirect censorship through budget cuts orother retaliation. This was the case at a New York college in 1988, whena conservative publication went independent after the student governmentcut its budget because it did not comply with a ban on a “hypocrite ofthe month” feature.[9]

HowIs an Underground Newspaper Published?

Underground newspapers typically must rely on the energy,time and resources of volunteers because of their lack of school support.This means that more work may sometimes be required than publishing a school-sponsored newspaper supported by a class or club with a paid adviser and plenty ofcomputers, school funding and advertising revenue.

Students must first find people who share their interestin producing an underground newspaper and are willing to share the work.Although some papers have been written by a single person, such arrangementslikely means more work for that person, little chance of continuing morethan a few issues and potentially less credibility with the paper’s readersand the administration. Finding people who like to write or draw and wouldlike to express themselves may be difficult since many of those peoplemay have already joined one of the school publications. But at most schools,the chance to sound off without being evaluated by a teacher or being dependenton school authorities will likely turn up plenty of people.

The next step involves the actual development of the newspaper’scontents. Since no formal coursework is involved, students must find thetime to write articles and draw pictures at home after school. Sometimesthis may seem easy, such as when students want to sound off on especiallycontroversial school policies. But students who want to produce multipleissues on different subjects will need to go through the same steps ofthinking about articles as any other newspaper. And editing and proofreadingwill always need to be done if students want their readers to understandtheir ideas. Underground newspapers that contain only rambling, unintelligibleopinion pieces may get even less attention and respect than a censoredschool newspaper.

The actual production and printing of an underground newspaperrepresents another stumbling block. Home computers, typewriters at thepublic library, inexpensive copying services and desktop publishing programshave made it possible for many more students to produce high-quality undergroundnewspapers with small amounts of time and money. Even if they don’t looklike the newsprint editions of the school-sponsored newspaper, undergroundnewspapers can at least be typewritten, photocopied or posted on the Internet.

Money to pay for printing, which is often the sole expensefor underground newspapers, can come from a variety of sources. Studentswriting the paper can each contribute a small amount, or their parentsmay be able to subsidize the paper by paying the photocopying bills. Communitymembers and neighbors supportive of young free speech advocates may alsolend a hand if asked. Local businesses may eventually be interested inbuying advertisements if the business wants to identify with the paper’scontent and the paper has a stable readership the business wants to reach.In some cases, local journalists have even offered logistical support andtemporary office space to underground papers, most often when school-sponsoredgroups have been censored or punished.

The actual distribution of an underground newspaper isthe final step in the publishing process. While distributing copies awayfrom school grounds avoids many legal problems, many underground journalistsfind it most efficient to put their newspaper into the hands of studentsat school. This often means handing it out in the school’s hallways orat a centrally located site. Some effort should be invested in planninga good distribution strategy, as will be discussed later in the packet,since mistakes at this stage can doom even the best underground newspapers.

Surviving Underground Tip No. 1

Understand the Risks

No matter how careful you may be or how much the law is on your side, many students who publish underground newspapers have been punished for their work. In addition to receiving countless suspensions, students have been expelled,(1)been denied graduation privileges,(2) refused membershipto honor societies,(3) lost potential college scholarships,(4) sent to alternative schools for their senior year(5) and even faced arrest(6) because of their roles with underground publications.

Sometimes sanctions may be overturned, but that usually does not happen until months or years later and after legal bills have piled up. So it is important to appreciate the risks you are taking and think carefully about what you publish. Afterall, careless underground journalists not only make it easier for school officials to punish them, but they can make it harder for all student journalists who follow them to exercise their rights.

It has often been said that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[10] The U.S. Supreme Court made that statement inthe landmark 1968 case Tinker v. Des Moines Independent Community SchoolDistrict, in which it approved of public high school students wearingblack armbands to school in protest of the Vietnam War. Thus, the FirstAmendment’s protection of free speech does not stop simply because studentsare in a classroom instead of at a political rally or on a public street.

But the Court in Tinker also recognized that “the First Amendment rights of children are not co-extensive with those of adults.”[11] Schools cannot be expected to complete their mission of educating youngpeople if the First Amendment permitted a limitless free-for-all. Accordingly,student free speech rights can be limited when their exercise “materiallydisrupts classwork or involves substantial disorder or invasion of therights of others.”[12]

Although the Court in Tinker dealt with armbands, it implicitly approved of other forms of non-school-sponsored expression. Thus, underground newspapers also cannot be restricted or their staff members punished without school authorities demonstrating the interference mentioned in Tinker.

Exactly what Tinker forbids — which will be discussed more fully later — can often be a source of debate. It is clear, however, that administrators do not need to wait for a riot or fight to occur before limiting student speech. However, school officials must provide a “reasonable forecast” of disruption supported by facts, and not merely speculation or a dislike of the speech.[13] In a 1986 decision, the U.S. Supreme Court ruled that lewd comments in a high school student government speech alone could be such a disruption.[14]

Does the Type of School Matter?

The type of school that students attend can greatly affecttheir rights to produce and distribute underground newspapers. Studentsat public high schools and colleges clearly have the general right to distributetheir own publications on school grounds during the school day.[15] These students are typically limited only by the liberal Tinker standard concerning disruption.

Unfortunately, school administrators in private schools are not restricted by Tinker from censoring their students’ underground publications because the First Amendment only protects against censorship of state officials — a group that does not include private school administrators. Other weapons are available to underground journalists in those settings however, including public pressure, policy arguments, cases decided under more expansive state laws or constitutions[16] and, most significantly, previous guidelines or rules the school may have established. Courts have held that the contract law or the law of associations can establish relationships that may prevent schools from violating policies advertised or included in their own handbooks, catalogs and recruiting brochures after accepting tuition payments.[17]

The level of school can also make a difference to courtsdealing with underground newspaper cases. For better or for worse, collegestudents can get away with more in underground newspapers because theyhave an older, and theoretically more mature, audience that is closer tothe community at large than students in a high school.[18] In addition, most college campuses are larger than high school grounds,posing fewer possibilities for disruptions and interference such as theblocking of hallways.

Surviving Underground Tip No. 2

Meeting with Administrators Can Prevent Problems

Although administrators sometimes have to be tough, they usually prefer not to get involved in fights with students and lawsuits. That is why discussing your underground publication with them may help you in the long run (assuming you are not publishing it anonymously).

First, they can give you a copy of your school’s policies on non-school-sponsored materials, if one exists, that may enable you to accomplish everything you want to do.

They can answer any general questions you might have about content or distribution before you start. And later, they can discuss any specific issues raised by your actual publication and plans for handing it out. Getting such information from administrators can often prevent headaches later on and lead to favorablecompromises.

As one court noted, at a fair give-and-take session between students and administrators early in the process of developing an underground paper “the whole problem might be aired; hard feelings dissipated; distrust overcome; and mutual confidence established.”(1)

(1) Nitzberg v. Parks, 525 F.2d 378, 385 (4th Cir. 1975).

What Happenedin Hazelwood?

In 1988 the U.S. Supreme Court handed down its first decisionspecifically addressing the rights of high school student media in HazelwoodSchool District v. Kuhlmeier.[19] While the Court expanded a school administration’s power to control public school-sponsored publications, it also declined to overrule or limit Tinker’s protections for non-school-sponsored publications. The Court specifically noted that its decision applied only to “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”[20] That group does not include underground newspapers.[21]

Thus, more student newspapers have gone underground in recent years specifically to avoid the threat of legally permissible censorship. It is important to remember, though, that while Hazelwood-type censorship is not possible, the standards of Tinker and other press law doctrines are still fully applicable to underground newspapers.

Specific Legal Rights and Responsibilities Underground

WhatCan Be Included in the Underground Paper?

GeneralFreedom to Discuss School IssuesMany students want to write an underground newspaperto air grievances about their school and issues of concern to them — andthe law does not prevent that. Others are simply looking for a creativeand fun outlet to show off literary or artistic talents or to talk aboutfavorite hobbies or subjects. Whether they are comments about a schoolboard’s controversial decision or reviews of Gothic music, an undergroundjournalist generally does not have to avoid any topics that might be deemed”too sensitive” by a newspaper affiliated with the school. In fact, althoughcertain content in an underground newspaper can lead to problems, schoolofficials are generally forbidden from punishing you solely because ofthe view you take on a subject.

Thus, some of the school-related topics discussed in undergroundnewspapers in recent years have included counseling services, dress codes,student elections, political correctness, flag salutes, athletic programs,military recruiting on campus and administrative searches of students.Courts have come to respect frank, opinionated discussions of these serioustopics, which teach students how to speak out on important issues at ayoung age.

Other topics often included in a student newspaper arepolitical and social issues. Underground newspapers have included commentarieson nuclear war, the American economy, curfews and drug and alcohol abusein recent years. Overall, these out-of-class interstudent discussions donot “interfere with what the school teaches; it enriches the school environmentfor the students.”[22]

Unfortunately, many school officials who are the targetsof these commentaries or feel threatened by the underground newspaper oftendo not give adequate leeway to publications dealing with these issues.What they can do to control an underground newspaper will be discussedin the next section.

Effect of AdvertisingAlthough many underground newspapers get by on meagerdonations of money and supplies, those able to sell advertising as a wayto recover costs may have to defend themselves against new opposition.Many schools will quickly argue that an underground newspaper that containsadvertisements is a commercial solicitor, like a souvenir vendor or pizzaparlor hawking their products, that can more easily be banned or restrictedfrom the school grounds.[23]

But most courts have not discriminated against studentunderground newspapers based on their decision to include advertisements.Only if a school could prove that the particular situation in their schooljustified claims of a substantial and material disruption would a courtbe likely to accept a flat ban on papers with advertising.[24] Furthermore, most school-sponsored newspapers include advertisements, andschools generally cannot discriminate against an unofficial paper to helpthe official one.[25] As the Supreme Court has said, “Freedom of speech [and] freedom of the press are available to all, not merely tothose who can pay their own way.”[26]

Surviving Underground Tip No. 3

Develop a Plan for Putting Out Your Publication

If you want to produce a good publication (and especially if you want to keep producing it), you need to think about a number of important decisions that will have to be made. For example, how often will the publication come out? Who will contribute to its contents? What topics will be included and which will be beyondits scope? Exactly where and when would you like to distribute it?

Some of your plans may have to change eventually because of student interest or valid school policies, but starting out with a well-conceived idea of what you wantto do is much better than leaving it all to chance or getting carried away by impulse.(1) And you set your paper apart from thosethat are one-time joke sheets.

Libelous MaterialJust like any journalist, writers of underground newspapersmust be careful not to damage people’s reputations needlessly. The sizeof a newspaper’s audience or the informality of the publication’s appearanceor tone do not insulate students from potential legal liability for libel,which is defined as any published communication that falsely harms a person’sreputation.

In an underground newspaper, potential libel problemsmay arise when you are tempted to include personal attacks against schoolofficials or classmates. These can come through word or pictures, and associatespecific people with negative things, such as being a criminal or a liar.If such statements “libel” the person, the speech is unprotected underthe First Amendment and can be banned. With that in mind, it is worth rememberingwhat constitutes libel.

There are four elements that someone must prove to makea successful libel claim. First, the statement must be published, whichis satisfied by the distribution or sharing of one copy of an undergroundnewspaper to someone other than the person the statement is about. Second,the person claiming libel must be able to prove he or she was identifiedby the statement. Third, a libel plaintiff must prove that the statementharmed his or her reputation in the eyes of members of the community. Andfourth, the complaining party must prove fault, or that the alleged libelerdid something they should not have done or failed to do something theyshould have done.

Some people must prove a higher degree of fault than othersto recover for libelous statements. These people, called public officialsand public figures by courts, must prove “actual malice.” This is a legalterm that does not necessarily mean ill will but rather requires that theperson who claims he was libeled prove that the challenged statement waspublished by people who either knew it was false or who were reckless inverifying its accuracy. Some people who are the subject of undergroundnewspaper articles may be public figures and officials — such as coaches,principals, school board members or local celebrities — but it is bestto assume that every person discussed is a private person who will haveto prove the lowest level of fault if you publish inaccurate information.

A publication can also cite a number of defenses thatcan be used to defeat even a libel case that satisfies all four of theseelements. First, someone who consents to the media’s use of a libelousstatement cannot later sue for a damaged reputation. Second, truth is anabsolute defense to the charge of libel. Third, fair and accurate reportsof official public proceedings and reports, such as a school board meetingor a police report, are generally privileged from libel liability. Fourth,statements that are purely opinion and not descriptions of facts are protected,although the difference between them can often be hard to define and doesnot turn solely on phrases such as “in my opinion.” Fifth, statements thatno reasonable person would believe, such as satire, spoofs or rhetoricalhyperbole, cannot be libelous.

Steering clear of potential libel law problems will enablean underground newspaper to live a longer life. As will be discussed later,school officials will often cite libel law as a reason for penalizing anunderground newspaper’s leaders. For example, California high school studentswho ran a picture of political and school officials with a caption abouta drug deal may not have libeled anyone, but suspensions and a lawsuitwere involved before the controversy went away.[27] Onecourt has held that schools must be able to prove the schools would beliable for the statement in order to censor a publication — a difficulttest.[28] But regardless of the test, a careful and reasonable analysis of any potential libel issues will enable underground journaliststo rebut any later accusations intelligently. Such care, however, should not prevent underground newspapers from tackling tough subjects. It only argues for a little bit of thinking before publishing.[29]

Obscene MaterialSome underground newspapers attempt to attract attentionand make pointed statements by using profanity and crass references intheir pages. The law does not condemn most cases of simple poor taste,vulgarity or offensiveness. But underground journalists should know thatobscenity represents another danger zone for them. Generally, only themost sexually oriented or inappropriately targeted material usually canbe called obscene. Some courts, though, have begun expanding a relatedconcept concerning lewd and vulgar speech.

The standard test for obscenity involves three elementsdescribed by the Supreme Court in Miller v. California in 1973.[30] According to Miller, a court will consider (1) whether a reasonable person, applying contemporary community standards, would find the work, taken as a whole, appeals to a prurient (lustful) interest, (2) whetherthe work depicts or describes in a patently offensive way sexual conductspecifically defined as obscene by the applicable state law, and (3) whetherthe work, taken as a whole, lacks serious literary, artistic, politicalor scientific value.[31] Mere offensive content such asprofane language or ideas, which are often included in underground newspapers,is not likely to be obscene.[32]

A similar but slightly broader definition of obscenity, however, has been applied to cases involving minors. In 1968, the Supreme Court in Ginsberg v. New York[33] definedobscenity involving minors as any description or representation of nudityor sexual conduct that (1) predominantly appeals to the prurient, shamefulor morbid interest of minors, (2) is patently offensive to prevailing standardsin the adult community as a whole with respect to what is suitable forminors, and (3) is utterly without redeeming social importance for minors.Thus, a high school underground newspaper could run into obscenity problemseven if the same material would not be considered obscene on a collegecampus.

These standards are obviously vague. Therefore, undergroundjournalists should think twice before including such things as nudity orother overtly sexual material in their publications.[34]

In addition, it is important to know that the SupremeCourt has allowed restrictions on speech by high school students that islewd and vulgar but not legally obscene. In 1986, the Court ruled in BethelSchool District v. Fraser[35] that school officialscould punish a student for giving a student government campaign speechlaced with non-obscene sexual innuendoes because schools have a responsibilityto teach the “‘habits and manners of civility’ essential to a democraticsociety.”[36] The Court believed the speech was disruptiveunder the Tinker standard, although students listening to the speech– unlike students handed a newspaper — could not ignore the speech. TheCourt allowed school officials to censor the speaker merely because theydisagreed with his message.

Some courts disagree on the reach of Bethel when applying it to underground newspapers. One appeals court relied on Bethel inupholding the suspension of students who used profanity and vulgarity intheir underground newspaper.[37] Another court in Floridacited Bethel when it dismissed a suit challenging sanctions againstan underground paper that contained “vulgar and offensive” language.[38] And still another recognized problems with “vulgar, lewd, obscene and plainly offensive” speech that does not rise to the level of a disruption in a decision involving protest buttons.[39] Other courts, however, have held that students may use earthy language and crass references as a part of unofficial publications.[40] These courts notethat such content may offend some people, but, for better or worse, ispart of our society and can be found in mainstream literary works.

Thus, although underground journalists are not likelyto run into problems with full-fledged obscenity in most cases, they shouldkeep in mind the audience of the publication, the pervasiveness of anyoffensive material (i.e., is every other word or phrase crude or are suchthings more sporadic) and if there might be other ways of communicatingone’s ideas so as to avoid potential problems.

Surviving Underground Tip No. 4

Don’t Immediately Disregard School Policies

One of the quickest ways to hurt your position as an underground journalist is to ignore school policies right off the bat. You may disagree with them — and theymay ultimately be repealed or struck down — but nothing gives school officialsand courts more ammunition than being able to say that they punished yousimply because you did not even care what the rules were.(1) Breaking the rules and making yourself the next court case should usually come after you have explored all the other avenues available to you.

MaterialThat Disrupts SchoolSchool officials frequently cite Tinker’s prohibitionon disruptive activities as another reason for limiting student free speechrights. Courts do not include everything in this category that might seemto fit within it from its vague name. But there are some things that undergroundjournalists should probably avoid. Remember that school officials do nothave to wait for a disruption, just be able to forecast it reasonably.

First, underground newspapers should not cause or inciteillegal conduct. It is one thing to advocate, encourage or glorify thingslike violence, sex between unmarried minors or illicit drug use. But actuallyleading readers through a how-to lesson on such topics probably crossesthe line between advocacy and incitement and makes it easier for schoolofficials to argue students are disrupting school. Such was the case inWisconsin when a high school student was expelled from school his senioryear after writing an article in an underground paper instructing how tohack the school’s computers.[41] Similarly, high schoolstudents in Virginia ran into trouble with school officials when they publisheda recipe — which they said was intended as a joke — for a marijuana dessertcalled “Apple Pot.”[42] A New York high school studentwas even arrested in 1995 for inciting a riot after asking students tothrow trash on the ground, urinate on the floor and wear certain typesof T-shirts to school.[43] Incitement to violate schoolrules not involving criminal conduct also could cause problems.[44] Incitement simply is not protected, in either the student press or the non-student press. Furthermore, students should be careful not to advertise illegal products, such as drug paraphernalia, in a publication.[45]

Second, calls to stage walkouts or protests can be impermissiblewhen school officials can point to recent events making it likely thatstudents will respond to the plea. For example, a federal court upheldan Indiana high school’s decision to suspend students for handing out leafletscalling for a walkout. The court said that a walkout by 54 students theday before, the noisy and rowdy atmosphere in the halls, an increase intardiness and predictions by administrators of an even bigger walkout thenext day combined to make the leaflet distribution disruptive.[46] Another label some schools put on this advocacy is “insubordination” by students toward school officials.[47] It was also seen during the 1970s when students were punished for calling for class boycotts.

Third, pointed ridicule or statements aimed at humiliatingparticular groups of students can play into the hands of school officials,who may argue that such insults may lead to disruptions at school. Suchwas the case in Ohio when students made fun of learning disabled studentsand women with facial hair in their newspaper.[48] Racistmessages also fall into this category, although a school’s prediction thatunrest would result from the statements might still be speculative withoutsupporting facts.[49]

But, most importantly, students should simply be consciousof facts that school officials could cite in support of an actual disruptioncaused by the student newspaper. For example, a North Carolina studentwho published unconfirmed reports about a principal canceling school socialevents and keeping bomb threats secret was accused of inciting a riot becausestudents allegedly could not stop talking about the news during classesand even started to leave the building.[50] False announcements of class cancellations could also fall into the category of disruptions for which underground newspapers are held responsible. School officialswould have a difficult time arguing that their censorship was justifiedwhen the only disruption that occurred was a result of the censorship itself(for example, a student protest demanding that confiscated newspapers bereleased) and not the publication.

In addition to these general warnings, underground newspapersshould always keep their audience in mind. As mentioned earlier, disruptionsare more likely to be present at the high school level, where studentsare younger, and the schools are often of smaller size.

Another point to keep in mind is that underground journalistsaccused of causing a disruption because of the content of the paper –regardless of how true that accusation may be — can always point to thefact that no real disruption occurred after the paper was distributed.This has helped students in a number of cases.[51]

Surviving Underground Tip No. 5

Don’t Shock Just to Shock

Despite the urge to catch your classmates’ attention with the most racy or vulgar words or pictures, going for shock value does not always accomplish much.

There is nothing wrong with some colorful language or tough statements, but try not overdo it. Many an underground journalist have found themselves in troublefor including one too many things that bordered on racism,(1) insensitivity(2) or extremely poor taste.(3) Make sure you are printing your newspaper to do more than annoy people. That is the difference between an underground newspaper that gets read and its rights respected and one that gets treated no better than graffiti.

Anything Else That Could Get Any Newspaper in TroubleAs mentioned earlier, the producers of underground newspapers are not different from other journalists in most areas of the law. This continues to be true in regard to areas such as copyright and invasion of privacy.

Federal copyright laws should not, however, prevent an underground newspaper from using all copyrighted material. Underground journalists, like anyone else, can seek explicit permission, for example, to reproduce a photograph published in the local newspaper. Fair use of a copyrighted work also allows journalists to use copyrighted materials, such as excerpts in a book review, news reporting or commentary. In addition, parodies and originally produced caricatures of cartoons necessarily use copyrighted materials as their source and are permitted as long asthey are not used merely for their recognition value or to usurp opportunitiesfor the original author to make money off the same idea.[52] Student journalists should pause to consider any copyright considerations before publishing their paper.[53]

Underground newspapers can also get into trouble when they invade people’s privacy. One way to do this is to disclose private or embarrassing facts that would tend to humiliate the target. This might happen if a student’s confidential transcript or medical history was discussed in an underground newspaper, or, more often, a gossip column revealed details of a teacher’s romantic life. Although newsworthiness can protect some uses of personal information, truth is not a defense in a privacy case as it is with libel. And consent, although it is a defense to all privacy claims, must be given and be capable of proof in court and must be from someone capable of giving it (which probably rules out many young children).

In addition, papers can cause themselves headaches when they portray someone unflatteringly in words or pictures as something he or she is not. The most common example of a “false light” claim is when a photograph is placed next to a caption, story or headline that creates the wrong idea, such as a picture of a man innocently drinking a beer next to a story about alcoholism. Even if someone’s picture or likeness is used in a flattering or non-controversial way, newspapers then have to guard against claims of misappropriation, or using someone’s name, likeness or endorsement without authorization for commercial purposes.

Another type of privacy problem can arise when newspaper staff members physically intrude on someone’s privacy. This can happen when students trespass where they are not supposed to be, use surveillance equipment to observe or record people without their permission, or misrepresent themselves to gain access to somewhere they would not otherwise be entitled to go.[54]

Surviving Underground Tip No. 6

Seek Help from Families, Businesses and the Local Media

Doing without official school support does not mean that an underground newspaper must do everything alone. At the beginning, most would not get off the ground without generous contributions from parents or other relatives, who often pay for photocopying. Local business can also help out by buying ads if the publication reaches enough people. And the local media may be able to help you out by donating money or supplies, sharing staff expertise or covering your efforts to exercise your rights under the First Amendment.(1)

(1)Students hand out papers off campus after school administrators threaten suspension,21 SPLC Report, No. 2 at 25 (Spring 2000) (referring to the local media’s coverage and support of high school students distributing their underground paper across the street from the school after being threatened with suspension for on-campus distribution).

Can School Officials Review and Censor the Newspaper?

One of the primary reasons students decide to produce underground newspapers is to avoid the possibility of direct prepublication control. At public colleges, this freedom generally can be achieved as even school-sponsored newspapers, like the professional media, cannot be required to be approved by government officials before distribution.[55] But federal appeals courts, which are one level below the Supreme Court, have offered different interpretations of the exact rights of high school officials to censor underground papers. Until the Supreme Court issues clear rules, students will have to understand the varying conclusions and which might apply to them.

Courts That Forbid Prior ReviewThe most recent appellate court decision on underground newspapers held that high school administrators have no general right to review and change an underground newspaper before it is distributed.

In Burch v. Barker,[56] Washington state high school students were punished not for the content of their publication or any disruption it caused, but solely for not submitting it for prior approval as school policy required. The U.S. Court of Appeals for the Ninth Circuit rejected the school’s arguments that review was necessary to weed out damaging or distracting information. The court said that Tinker did not call for censorship based on “undifferentiated fears of possible disturbances or embarrassment to school officials” and that a heavy presumption exists against any prior review.[57] The court said that especially in the years after Hazelwood, the difference between school-sponsored and non-school sponsored publications calls for more freedom for the latter group.[58]

The Burch decision, however, only applies to the Western states within the Ninth Circuit. Those states and territories are Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington. Students could be forced to submit to prior review in those states only if school officials presented real evidence of a likelihood of disruption under the Tinker test. And, as always, students can still be held responsible for the consequences of their actions after publication regardless of any prior review.

Other courts have also been tough on schools trying to inspect and censor underground newspapers. In Fujishima v. Board of Education,[59] the Seventh Circuit ruled that high school students who produced an underground newspaper did not have to comply with a school policy requiring prior review. The court said Tinker allowed some students to be punished for exercising their right to speak, but it did not create “a basis for establishing a system of censorship and licensing designed to prevent the exercise of First-Amendment rights.”[60]Fujishima, however, also has its limits. The Seventh Circuit’s jurisdiction includes only Wisconsin, Illinois and Indiana. And the Seventh Circuit has allowed prior review in other contexts. For example, in 1996, the court called prior review an “important tool in preserving the proper educational environment” in a case analyzing the distribution of religious handbills to fourth-graders.[61]

The First Circuit — which covers Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island — also has hinted that prior review cannot be accomplished. In Riseman v. School Committee of City of Quincy,[62] the court hinted as it struck down a vague rule against distributing advertising on school grounds that advance content review is not acceptable. Remember, too, that school officials are never required to conduct prior review.[63] Public pressure can thus lead a school board to adopt voluntarily a policy disavowing any possible prior review without any court involvement — as happened in Maine in 1992.[64]

Courts That Examine School PoliciesSome of the other federal appeals courts (there are 13), however, take a different approach to prior review. They believe that prior review is acceptable in theory with enough safeguards.[65] Their approach then is to pick apart the policies under which a school reviews an underground newspaper in order to discover flaws. Most courts have concluded that these policies are unconstitutional, thus protecting underground newspapers.

ATypical Non-School-Sponsored Publication Policy

Most school policies that apply to non-school sponsored publications will have elements in common. Typically, they will:

– apply not only to underground newspapers but also any book, tract or other publication to be distributed on school grounds- require submission of one copy of the material to a designated school official a specified time before the material is to be distributed, typically 24 or 48 hours- provide a set of reasons that the school official can cite as grounds for rejecting the proposed distribution. These include materials that are substantially disruptive, obscene or defamatory. (These criteria may sound familiar to you — they are simply repeating the things that should not be included in an underground newspaper because the Constitution does not protect them under Tinker and other cases. They often include things such as libel, obscenity, incitements to illegal acts, vulgarity, threats of violence, invasions of privacy, and demeaning ordiscriminatory statements.).- specify that a student can appeal the official’s ruling within a certain period of time.

Common Flaws in a Policy

Many courts have pointed out pitfalls that make it difficult, if not impossible, for schools to develop acceptable prior review policies. A survey of some of these observations may help you spot an unenforceable provision that will prevent your school from censoring underground newspapers. It is worth remembering that just because a policy is written by a school administrator does not mean that it willbe approved by a court.

Primarily, any guidelines must inform a reasonably intelligent student of what is prohibited.[66] This means that key but vague terms such as “substantial disruption,” “libel” or “obscenity” should be correctly defined in the policy.[67] Other terms, such as a policy that prohibits “inappropriate” language or types of “poor taste” are simply so vague that they would almost always be stricken by a court. The policy should include examples of or criteria related to any prohibited expression.[68]

The policy also cannot be “overbroad,” or include unlimited or legally unnecessary reasons to censor a publication. Policies with these powers could leave distribution decisions to administrators’ whims or “mere desire to avoid the discomfort and unpleasantness of speech.”[69] Even schools that conduct prior review cannot suppress underground paperssolely because they are vigorous critics of a school system or take a controversialpolitical or social stance different from the majority of the community.[70] Another example of an overly broad policy is one that prohibits material that can be legally published, such as a “false light advertisements” in a state where courts did not prevent their publication.[71]

In addition, the policy must include the specifics mentioned in the typical policy discussed earlier. The policy must clearly tell students to whom the material must be submitted for approval.[72] A decision must be reached on the status of the publication within a reasonable period of time after submission, and the policy should specify what happens if school officials fail to make a decision within a specified period.[73]

Actual school policies found by courts to suffer from some of these constitutional problems have included the power of school officials to censor a publication that:- does not conform to “the journalistic standards of accuracy, taste and decency maintained by newspapers of general circulation in the city”[74]– is “alien to school purposes”[75]– “advocates illegal actions, or is grossly insulting to any group or individual”[76]– “incites students or disrupts the orderly operation of the school”[77]– is “productive of, or likely to produce a significant disruption of the normal educational processes, functions or purposes in any of the [city] schools or injuries to others”[78]

Thus, although a policy may seem restrictive, it cannot give unlimited or unreasonably vague power to school officials. By requiring the rules to be as specific as possible, courts attempt to avoid the danger of an administrator censoring “negative,” “controversial” or “critical” articles under the guise of libel or substantial disruption.

Surviving Underground Tip No. 7

Appeal Decisions and Actions Taken Against You

One of the best steps to take when you encounter censorship, distribution restrictions or punishment is to take advantage of every appeal available within the school system. Sometimes simply showing you are serious and diligent may cause administrators to back down. Or you may work out a compromise or win outright. But it is always your right to make every level of the school administration reviewand approve of the actions taken. And the process gives you time to rallysupport from the public and parents, which can help your case if it doesgo to court.

DueProcess Rights for StudentsIn addition to the more substantive problems with a prior review policy, students can point to provisions that violate their right to a full and fair procedural review. The principal’s office may not be a courtroom, but these “due process” rights can be just as fatal as other flaws in a policy.[79]

For example, students must have written “notice” of the relevant school distribution policy. This does not mean that each student must actually receive the policy or be told of it personally. Instead, it means that a school district must publish the policy in school publications or circulate it in the same manner asother official school materials.[80] This prevents schoolsfrom relying on oral policies or keeping them under lock and key. To satisfythis requirement, many schools may simply include the policy in a studentrights handbook given out annually or publish it in a beginning-of-the-yearnewsletter.

In addition, students must be given a chance to argue why distribution of their publication should be allowed. This hearing does not have to be formal, but it does have to be granted promptly and allow the affected students a chance to speak.[81] There is no guarantee the school official will listen or agree with you, but at least you have a chance to explain your legal rights and reason for wanting to distribute the publication.

Finally, students must be given the chance to appeal a school official’s decision to censor or ban your publication. Again, the review must be prompt and allow you a chance to state your case.[82] The person hearing the appeal is likely to be a school district administrator who may not be any more sympathetic to your case, but at least there is a chance to try to convince someone else before resorting to the courts.

These same principles also apply to a student’s punishment when suspended or expelled because students have a right to remain in attendance at a public school.[83] The degree or procedures, however, depends on the length of the sanctions and the circumstances involved.[84]

How Should the Authors Be Identified?

Anonymous Publications

Many underground journalists seek to expose their ideas to their classmates, but not necessarily their identities. They may justifiably fear retribution from teachers or scorn from their classmates. However, complete anonymity may not always be possible to achieve.

For example, in states that permit prior review of underground newspapers, at least one person often will need to be identified as a contact to deal with administrators reviewing the publication. School officials may also want contact names in case problems arise during distribution. This need not be an individual responsible for having produced the content of the publication, but rather simply an “agent” willing to act as a go-between.

Beyond these minimal requirements, there is no requirement that everyone involved with an underground newspaper is identified in its pages or to school officials (though school officials may attempt to find out on their own). As one court has said, a prohibition against anonymous literature might not be justifiable because “without anonymity, fear of reprisal may deter peaceful discussion of controversial but important school rules and policies.”[85]

Disclaimers of School SponsorshipWhile putting students’ names on an underground newspaper may not be important, a statement that the school is not involved with the publication may be. This is because one of the arguments school officials may make against an underground publication is that people will be confused by it and believe it was produced by oraffiliated with the school.

This happened at a North Carolina college, where school officials complained that the paper’s name incorporated the school’s name and used the school’s seal in its masthead. The paper denied using protected material or trying to confuse people, but did change its secondary title from an “independent journal of” the school to one “at” the school.[86] A Missouri college student also asserted recently he was expelled from school because school officials alleged his alternative newspaper had misled advertisers into thinking it was affiliated with the school.[87]

One simple way to try to avoid this problem would be to include a simple, one sentence statement in the flag or masthead of your newspaper saying something like “this publication is not affiliated with Anytown High School and its contents are in no way endorsed or funded by the school.” This may not prevent all of your legalproblems, but it may at least show you are taking reasonable steps to preventconfusion.

Can Distribution Be Done at School?

General Right to DistributePublic schools cannot ban the distribution of underground newspapers any more than they can ban their creation.[88] However, students should understand the ways that school officials can legally restrict distribution.

Underground journalists should remember the Tinker standards for reasonable predictions of substantial and material disruptions. No matter how eloquent the articles in an underground paper may be, students who want to form a human chain across a hallway and hand out their paper will have a tough case. So will students who insist on handing out the latest issue in the middle of a science class. Administrators are entitled to make sure the normal operations of a school go on without interruption.

Thus, school officials may impose what are called reasonable “time, pl